The ITO, Ward-1(4), Ahmedabad V. Doshion Limited, Ahmedabad

ITA 3368/AHD/2010

• Counselvise Citation: 336820514 RSA 2010
• Duration Of Justice: 3 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 13-03-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 21-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Assessee Lawyers: HIREN TRIVEDI
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA NO.3368/AHD/2010 A.Y. 2005-06 ITO, WARD 1(4), AHMEDABAD. VS DOSHION LTD., 24/25/26 PHASE-II, GIDC ESTATE, VATVA, AHMEDABAD. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI J.P. JHANGID, SR.D.R. ASSESSEE(S) BY : SHRI HIREN TRIVEDI, A.R. / DATE OF HEARING : 13/03/2014 / DATE OF PRONOUNCEMENT: 27/03/2014 / O R D E R PER SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE REVENUE ARISING FROM THE ORDER OF LEARNED CIT(A)-VI, AHMEDABAD, DATED 18.10.2010 AND THE ONLY GROUND IS IN RESPECT OF DELETING THE PENALTY LEVIED U/S.271(1 )(C) OF RS.11,02,048/-. 2. WE HAVE PERUSED THE ASSESSMENT ORDER PASSED U/S. 143(3), DATED 03.05.2007 AS WELL AS THE IMPUGNED PENALTY ORDER PA SSED U/S.271(1)(C), DATED 18.12.2009 AND HAVE NOTED THAT THE PENALTY WA S LEVIED IN RESPECT OF DISALLOWANCE U/S. 80IB OF THE ACT. WHEN LEVY OF PEN ALTY WAS CHALLENGED BEFORE LEARNED CIT(A), IT WAS DELETED BY ASSIGNING FOLLOWING REASONS: I HAVE CONSIDERED THE FACTS OF THE CASE; PENALTY O RDER AND APPELLANTS SUBMISSION. ASSESSING OFFICER MADE ADDITION ON ACCO UNT OF REJECTION OF CLAIM OF DEDUCTION UNDER SECTION 80IB ON TURNKEY PR OJECTS. PENALTY ON THIS ADDITION WAS LEVIED SINCE THE ADDITION WAS CON FIRMED BY CIT(A). HOWEVER, IDENTICAL ADDITIONS WERE MADE IN A.Y. 2003 -04 AND A.Y. 2004- 05 (IMMEDIATE PRECEDING TWO YEARS) WHICH WERE DELET ED BY CIT(A). ITA NO.3368/AHD/2010 ITO WARD 1(4), AHMEDABAD VS. DOSHIAN LTD. A.Y.2005-06 - 2 - AGAINST THE APPEAL FILED BY THE DEPARTMENT, ITAT AH MEDABAD BY ORDER DATED 18 JUNE 2010 AND 13 AUGUST 2010 DISMISSED THE DEPARTMENTS APPEAL AND CONFIRMED THE STAND OF CIT(A). IN NUTSHE LL, THE ISSUE ON WHICH PENALTY HAS BEEN LEVIED BY THE ASSESSING OFFI CER IS ALREADY DECIDED IN FAVOUR OF APPELLANT IN EARLIER TWO YEARS BY ITAT. SINCE ITAT HA ALREADY DECIDED THE ISSUE IN FAVOUR OF APPELLANT , MAY BE IN EARLIER YEARS, THE PENALTY CANNOT BE LEVIED EVEN WHEN THE A PPEAL IS PENDING FOR THIS YEAR BEFORE ITAT. THE DECISION ON THE ISSUE IN FAVOUR OF APPELLANT CLEARLY MAKES IT DEBATABLE ON WHICH PENALTY UNDER S ECTION 271(1)(C) CANNOT BE LEVIED. I HAVE GONE THROUGH BOTH THE ORDE RS OF ITAT AND I FIND THAT A CLEAR RELIEF IS ALLOWED TO THE APPELLANT ON THE ISSUE. CONSIDERING THIS, PENALTY LEVIED BY THE ASSESSING OFFICER IS DE LETED. 3. MOREOVER, NOW BEFORE US LEARNED AR MR. HIREN TRI VEDI HAS FILED A COPY OF AN ORDER OF ITAT A BENCH AHMEDABAD BEARIN G ITA NO.1093/AHD/2009 FOR A.Y. 2005-06, DATED 31 ST MARCH, 2011 PRONOUNCED IN ASSESSEE OWN CASE, WHEREIN THE CLAIM OF DEDUCTION U/S.80IB WAS ALLOWED IN THE FOLLOWING MANNER: HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GON E THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND PERUSED THE MAT ERIALS PLACED BEFORE US. IT IS PERTINENT TO NOTE THAT IN THE ASSESSMENT YEAR 2004-05, ITAT C BENCH, AHMEDABAD VIDE ORDER DATED 18.06.2010 IN ITA NO.2921/AHD/2007 HELD THAT THE ASSESSEE IS ENTITLED TO RELIEF ON PROFIT EARNED ON WORK CONTRACT SALES, AS VIRTUALLY ADMITTE D BY THE LD. DR. IN THE ASSESSMENT YEAR 2003-04, ITAT C BENCH VIDE OR DER DATED 13.08.2010 IN ITA NO.3627/AHD/2007, FOLLOWING THE D ECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05, HELD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION UNDER SE CTION 80-IB OF THE IT ACT, 1961 AMOUNTING TO RS.7,39,911/- ON PROFIT EARN ED ON WORK CONTRACT SALES. THE FACTS, IN THE ASSESSMENT YEAR UNDER APPE AL, ARE IDENTICAL WITH THAT OF ORDER TWO ASSESSMENT YEARS. WE, THEREFORE, FOLLOWING THE DECISION OF THE TRIBUNAL IN EARLIER TWO ASSESSMENT YEARS, DIRECT THE AO TO ALLOW DEDUCTION UNDER SECTION 80-IB AMOUNTING TO RS.30,86,972/- ON WORK CONTRACT SALES. THUS, THIS GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 3.1 SINCE, THE QUANTUM ADDITION ITSELF DOES NOT SUR VIVE IN ANY MANNER; HENCE, THE CONCEALMENT PENALTY SHOULD ALSO BE QUASH ED. THE ORDER OF ITA NO.3368/AHD/2010 ITO WARD 1(4), AHMEDABAD VS. DOSHIAN LTD. A.Y.2005-06 - 3 - LEARNED CIT(A) IS HEREBY CONFIRM AND THE GROUND RAI SED BY THE REVENUE CITED ABOVE IS DISMISSED. 4. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 27/03/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD